OSI enforcement? (Was Re: Microsoft use of the term "Open Source")

[Philippe Verdy]

> De : 'Rick Moen' [mailto:rick at linuxmafia.com]
> Envoyé : mardi 8 janvier 2008 06:12
> À : license-discuss at opensource.org
> Objet : Re: OSI enforcement? (Was Re: Microsoft use of the term "Open
> Source")
> 
> Quoting Philippe Verdy (verdy_p at wanadoo.fr):
> 
> > I maintain that a trademark is registered by its owner exactly to get an
> > exclusive use. But don't read it too broadly: I have also maintained
> that
> > all exclusive uses are granted by the public for an exclusive use but
> this
> > exclusive use is limited in both scope and area (and even time because
> the
> > registration system will most often require renewal and payment of fees
> to
> > extend this reservation).
> 
> The point is that several of the "scope and area" limitations are such
> that it really makes no sense to speak of exclusive use at all, let
> alone about trademarks supposedly making someone "the legal owner of an
> expression".  (E.g., non-commercial use by third parties inherently
> cannot infringe.)
> 
> So, I conclude that you're very likely still in need of fundamental
> study on this subject, and really should do that before giving OSI
> recommendations on it.

Stop hammering against me publicly please. You're not qualified to give
personal opinions about me as I don't know you and you don't know me
personnally.

I have NOT given recommendations to the OSI, we are giving opinions on this
list, the OSI can make its own decisions.

And I have not argued using legally binding arguments because IANAL (like
you often write in US, just because of a local federal law that seems to
forbid anyone to act as a lawyer, as if they pretended to do so, despite
this is a clear breach in the freedom of expression and opinion, and despite
anyone is also authorized in US be its own lawyer in a trial).

My opinions are there to correct assumptions that what what is tolerated in
US is not universal. If you have some legal opposition against my arguments,
it's just because you consider your local case in your country. My arguments
are recentering the debate on the protection of open source and free
softwares where it should live: internationally, because that's the natural
place for the movement.

And I certainly won't participate to the debate between open source and free
software movements because I don't understand what is the interest of such
opposition, when both movements have much in common to defend (also because
I suspect that this "war" was secretely organized on purpose by large
corporations trying to convince organizations worldwide that only their own
proprietary licencing schemes would protect them from legal difficulties,
and because they have many interests to discredit both movements by putting
them in opposition when they both largely use and depend on software
developed jointly by members of the two movements).

We are concerned here (and at the FSF too) by the effective securing of open
sourcing as a stronger way for long term development and for the benefit of
everybody (commercial or not). So your argument that "non-commercial use by
third parties inherently cannot infringe" is certainly not one to use here:
we need protection of open source or free software equally, even if we are
commercial organizations.

We have to demonstrate that the movement is solid, and fight against the
attempt by a few large corporations that only their model will work and
benefit to the community (when in fact it will benefit to a minority of
stock shares holders in a few countries, against all other users, whever
they are individual people or private organisations or public organisms, or
children or adults, or rich or poor or disabled people.)

The beauty of the FLOSS movement is that it can benefit to everyone and will
allow more people to be productive and inventive: more participants means
faster adaptations and stronger resistance face to critical events. And a
larger space for using our hardly gained freedom. This is not a space of "no
right". We need protection of our joined movement using arguments at least
as much strong than those used by the few promoters of the closed and
proprietary development model.

Believe me: I'm not against property, because it is a way to avoid that
others abuse from the efforts made by others without contributing too. The
concept of property is good as long as it benefits to the community as a
whole. It only exists because the community has approved it within some
reasonable limitations that also protects the community from a single right
owner of abusing the community as a whole after forcing it to adopt its
solutions and dropping others.

I remember one famous example: in an African country, a school for poor
children needed some computers but there was no money to finance it. Some
associations in Europe decided to help them and provided them with computers
using free and open source solutions, that allowed them to use many
softwares and being able to maintain or repair them with minimum costs. The
school was fully equipped.

Later, a "Microsoft charity" representative (I must name it) came to that
school and criticized the solutions, arguing that these were not modern
enough. So they gave them with no cost new computers, fully equipped wit
hthe most modern options, and full of free Microsoft softwares. However, the
charity insisted by forcing the school to sign a contract with the "charity"
so that they would physically *destroy* all what was previously donated to
them (including computers, and all the software solutions that had
previously been developed specifically for the school!)

Then Mr Gates (or its representative) went to that school and advertised
about their new donation to poor school in Africa (and gained some US tax
returns...). But what Microsoft had not said to the school is that these
computers came without support. When the computers started to fail, they
were barred from getting any local or international support with paying a
costly yearly support option. Of course the school had no money to invest
for this support. The school initially could pay for the support, but this
required them to use money that they had initially though for investment in
the development of their own new software solutions. Soon the money lacked,
the school had to fire its locally paid engineer just to pay the support
licence, and any attempt to get the support was blocked by the provider...

Finally, less then one year later, all computers were no longer usable, and
there was absolutely no one in Africa or elsewhere to help them restore the
configuration. So now the school has NO usable computer, and there's no way
to restore them to function, because there's no alternative with
interoperable solutions. And they can't even get back to the previous
solution donated by the European charity (that had worked without problems
for several years), because the past computers (built with generic
components) had been destroyed, as well as all the software solutions that
were developed locally with the financement of the European charity.

Today, the same African school is back to a situation that had been
eliminated several years before. Everything has to be rebuilt. And all the
European donators have been frustrated: the association that had promoted
the project has lots of difficulties to convince again their supporters to
refinance the project to reequip the African school.

So what does it mean? Proprietary software as soon as it starts being bound
to hardware and other exclusive proprietary solutions, is an investment
decision where you can't easily come back without a even bigger risk. It
offers no survival alternative in case of failure, because it has a single
source that controls at any time the decision. The question of price or
utility of a proprietary solution is not all. We need security by the
multiplication of alternative providers and solutions. Without it, you risk
a lot for your own development.

The key issue is not whever the solution is commercial or not, but if it
offers alternatives: it requires both "freedom of choice" at any time
(including in case of failure, because failures in every computing systems
are likely to occur always after some time), and "open" solutions based on
interoperable standards. You MUST not base your own development by counting
only on one single provider or resource (this is also true in all other
domains than computing, and this is a general rule for the resistance of
life in general face to deceases, or societies face to economical changes or
natural disasters).

The FLOSS movements are all this: a community of small but independent and
numerous providers, that may fail isolately at any time, but are not
essential, and can all live and propose their services. You can build
commerce on this (and yes, commerce is the consequence of the collaboration
between people proposing different services and becoming competent and
excellent in various distinct domains).

This community is international, and under attack by a few "giants" that is
trying to divide it. We must resist (and can resist) because we are the vast
majority and have the historic right for us and all the rights that we have
granted to giants were limited. They are trying to convince us that their
exclusive rights are universal, which they are not since the beginning. To
resist, we need to use tools as much powerful as those that they have
invented: our licences must be at least as much resistant as those promoted
and protected at WIPO.

My opinion is that we need recognition of free and open source licences at
WIPO too. We absolutely don't need more protected rights in our licences
than those kept in proprietary licences. It will be enough for us to have
the same rights as them (it will be enough because we are collectively much
more powerful and numerous than them).